Ld. Member Mr. Shonee Kapoor,
Ordinarily I don't contradict my declarations about my replies or last replies.But here I am compelled to breach the 'Last reply to this thread' statement made by me for two reasons-
1. You have raised a matter of 'question of Law'.
2.I must tell you the difference between bookish knowledge and actual one,the former of which shows a base of your replies which you ordinarily boast of.
Starting......
First of all, I would like to introduce some sections of CRPC which is matter of contention here.
First the definition of revision under CRPC by Higher courts.
397. Calling for records to exercise powers of revision.
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding,sentence or order, -recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released
on bail or on his own bond pending the examination of the record.
Explanation.-All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
Defintion of section 311 of CRPC.
311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
Now,Some Observation of Supereme court and other High courts in relation to 'Interlocutory Decision' and 'Provision of Revision'.
Observation 1.
Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2)
Cr.P.C.[Ref- Sethuraman v. Rajamanickam, CRIMINAL APPEAL NO.486-487 OF 2009]
Observation 2.
The Code does not define an interlocutory order, but it obviously is an intermediate order, made during the preliminary stages of an enquiry or trial. The purpose of subsection (2) of section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it. But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adversely affects his rights.[Ref-PARMESHWARI DEVI vs. state AND ANR., 1977 AIR 403 1977 SCR (2) 160]
Observation 3.
6. The expressions 'interlocutory orders' or 'final order' have not been defined in the Code anywhere. In order to judge whether or not a particular order amounts to an 'interlocutory' or 'final' order we have to look to the authorities where in those terms have been defined or explained.
7. In Halsbury's Laws of England, Third Edition, (Simonds), Volume 22, an interlocutory judgment or order has been defined at page 744 as follows:
An order which does not deal with the final rights of the parties, but either (1) is made before judgment and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs now the declarations of rights already given in the final judgment are to be worked out, is termed interlocutory. An interlocutory order though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals. The phrase 'interlocutory judgment' is also used to describe a judgment for damages to be assessed.
8. It follows from the above definition that an order will remain interlocutory irrespective of the fact that it is passed before or after the pronouncement of final judgment or order and also irrespective of the fact that it is conclusive as to the subordinate matter with which it deals provided that it does not deal with the final rights of the parties and gives no final decision on the matters in dispute. If an order deals with procedural matters only or directs how declarations of right, already given in the final judgment are to be worked out it will be an interlocutory order even though it conclusively decides those subordinate matters.
9. Their Lordships of the Privy Council had occasion to determine the question of finality of an order in two cases, namely, Firm Ramachand Manji-mal v. Firm Goverdhandas Vishandas Ratanchand AIR 1920 PC 86 and V.M. Abdul Rahman v. D.K.G. Cassim and Sons AIR 1933 PC 58. In the former case their Lordships had to adjudicate whether or not an order refusing stay of suit under Section 19, Arbitration Act was final. Replying that question their Lordships relied upon two earlier decisions of Court of Appeal in Saleman v. Warner (1191) 1 QB 734 and Bozson v. Altrincham Urban District Council (1903) 1 KB 547 and held that an order is final if it filially
disposes of the rights of the parties and as orders refusing stay of suit did not dispose of those rights but leave them to be determined by the courts in the ordinary way, they are not final orders. In the latter case the question arose whether or not an order passed under Order 41, Rule 23, C.P.C. was a final and appellate order. Their Lordships observed that:
The test of finality is whether the order 'finally disposes of the rights of the parties' where order does not finally dispose of those rights but leaves them 'to be determined by the Courts in the ordinary way the order is not final, that the order went to the root of the suit namely, the jurisdiction of the Court to entertain it,' is not sufficient. The finality must be a finality in relation to the suit. If, after the order, the suit is still alive suit in which the rights of the parties have still to be determined no appeal lies against it under Section 109 (a).
10. The above two pronouncements were considered and followed by their Lordships of the Federal Court of India in S. Kuppuswami Rao v. The King AIR 1949 FC 1 : (1948) 49 Cri LJ 625 and Mohammed Amin Brothers Ltd. v. The Dominion of India AIR 1950 FC 77. In both of those cases it was held that the expression 'final order' has been used in contradiction to what is known as 'interlocutory order' and the essential test to distinguish one from the other is whether or not the order puts an end to the suit. If it was putting an end to the suit, it was final but if the suit was still left alive and had to be tried in the ordinary way the order was interlocutory. The case of S. Kuppuswami Rao v. The King (supra) involved the question of finality of an order passed by a Criminal Courts. Their Lordships observed that:
We have noticed above the meaning given to the expression 'final order' by the English and Indian Courts, those decisions were in civil cases. We think that the same meaning should be given to that expression in criminal cases also, that is to say, it must be an order which finally determines the points in dispute and brings the case to an end.
11. Their Lordships of the Supreme Court also considered finality of an order passed by a criminal court is M. Maganlal Thakkar v. State of Gujarat . In this authority the earlier decisions referred to above case followed end it was observed that generally speaking a judgment and order which determines the principal matter in question is termed final otherwise it is interlocutory.
12. To sum up the propositions laid down by the above authorities, the test in determining the final or interlocutory nature of an order is one and the same both in civil as well as criminal cases. That test is whether or not the order in question finally disposes of the rights of the parties or leaves them to be determined by the Court in the ordinary way. If the order does not finally dispose of the rights of the parties and the matters in dispute and leaves the suit or case still alive suit in which the rights of the parties have to be determined, the order will remain interlocutory irrespective of the stage at which it is passed and also irrespective of the conclusive decision of the subordinate matters with which i deals. Applying this test to an order passed by a Magistrate under Sections 107/ 111, Cr. P.C. that order is nothing but interlocutory because it is passed when the Magistrate is of opinion that the information received by him to the effect that any person was likely to commit breach of peace or to disturb public tranquillity etc. was credible. Acting upon that information the Magistrate simply calls upon the person concerned to show cause why he should not be bound down in the prescribed manner. Neither right of the parties are decided at that stage nor the matter in dispute is finally disposed of. That order is simply procedural in nature. It only gives a notice to the party concerned that there is such and such allegation against him and he should turn up before the Magistrate to clarify his position. Even the correctness of the information received by the Magistrate is not finally decided at that stage nor it is decided whether or not the party concerned should be bound down. Those points are to be decided when the case reaches the stage of Section 116, Cr. P.C. in Bhupinder Kumar v. State 1975 Cri LJ 1185 (Delhi) an order framing a charge in the case was held to be an interlocutory order because it does not decide the question of guilt or the innocence of the accused and simply puts the accused on notice as to the offence for which he was tried. Upon the same analogy an order passed under Sections 107/111, Cr. P.C. is an interlocutory order.
13. In the case of Trijugi Narain Shukla v. State of U.P. (1975) 1 All ER 627 a learned Single Judge of this Court held that an order passed under Sections 107/111, Cr. P.C. by a Magistrate was not interlocutory. The reasoning given by the learned Judge in support of that finding is as follows:
An interlocutory order means an order which is passed after the proceedings have commenced and before the proceedings have terminated. The notice as far as the applicant is concerned is the first step in the proceeding. The proceeding under Section 107 are commenced, no doubt, so far as the Magistrate is concerned, with the information received by him, but so far as the citizen is concerned it commenced with the issue of notice to him to show cause. The notice must therefore be deemed to be the preliminary step and not an interlocutory step in the proceedings. Further a notice of the nature issued by the learned Magistrate cannot be deemed to be an interlocutory order as it is of the nature of a show cause notice only. The preliminary objection is accordingly overruled.
14. We find it difficult to agree with the above noted reasoning. We have already referred to the authorities where-in it has been held that every order passed during the proceedings of a case, if it does not finally decide the case, is interlocutory. On that account no distinction can be made amongst different interlocutory orders on the ground that the one is passed at the preliminary stage of the proceedings whereas the other is passed at a later stage. In our opinion every order passed in a case or proceedings which does not finally decide the rights of the parties therein is interlocutory and on that account an order by a Magistrate under Sections 107/111, Cr. P.C. is nothing but an interlocutory order.
15. Reliance was placed on be-half of the revisionists upon a Division Bench case of Orissa High Court in Bhima Naik v. State 1975 Cri LJ 1923 (Ori). In that-case the question for consideration was whether or not provisions of Section 397(2), Cr. P.C. (new) applied to a preliminary order passed under Section 107, Cr. P.C. as it was an interlocutory order. After discussing the matter at length the Court came to the conclusion that an order passed by a Magistrate under Sections 107/111, Cr. P.C. was an interlocutory order for the purposes of Section 397(2), Cr. P.C. It was, however, further laid down in that authority that interlocutory orders passed without jurisdiction are
nullities and are non est in the eye of law can be interfered with in revision under Section 401, Cr. P.C. and in appropriate cases under Section 432, Cr. P.C. but interlocutory orders passed within jurisdiction could not be interfered with under any of those sections as well. We are not called upon to express any opinion on this observation because the same was made with reference to the particular circumstances of the case wherein the impugned order was apparently passed by the Magistrate concerned without having any jurisdiction to pass it. The order involved in the present revision is not of that category. Here the Magistrate concerned had jurisdiction to proceed with the matter and he has passed the order under revision in exercise of that jurisdiction and after coming to the conclusion that the information received by him was credible. The order which is involved in the present revision is, therefore, not the one which may be said to have been passed by the Magistrate concerned without jurisdiction. All that we have to see in the present revision is whether or not the aforesaid order is interlocutory to which the provisions of Section 397(2), Cr. P.C. are attracted. In our opinion such an order is an
interlocutory order and Section 397(2), Cr. P. C which impose an absolute bar upon exercise of revisional jurisdiction by the High Court and the Sessions Judge with respect to interlocutory orders passed by a subordinate court, bars the present revision.[Ref-Bindbasni And Ors. vs State Of U.P. on 31 March, 1976]
Observation 4.
10. What is an interlocutory order has not been defined in the Code. Judicial pronouncements on Articles 133 and 134 of the Constitution of India, 1950 and on Sections 109 and HO of the Civil P. C., 1908 point out the distinction between final and interlocutory orders. They would render substantial assistance in defining the meaning of interlocutory order in Section 397(2).
That their meaning is the same both in civil and criminal proceedings is concluded by AIR 1949 FC 1 : (1948) 49 Cri LJ 625, (S. Kuppuswami Rao v. The King).
Under Section 145, Cri. P. C. if an Executive Magistrate is satisfied that a dispute likely to cause a breach of the peace exists concerning any land, he shall pass a preliminary order in writing stating the grounds of his being so satisfied. Suppose, the Magistrate in his order writes that there was no apprehension of breach of peace and yet called upon the parties to the dispute to file written statements, the order of the Magistrate would be without jurisdiction. Such an order, though interlocutory, can be revised. A Criminal Court has no jurisdiction to deal with civil rights. The Magistrate gets jurisdiction only when there is an apprehension of breach of peace. If there is no apprehension of breach of peace there is lack of jurisdiction and the preliminary order so issued will be without jurisdiction and a nullity. In such a case if Section 397(2) will be a bar, the entire proceeding would continue till it is finally found out that the Magistrate acted without jurisdiction. On the other hand if there was an apprehension of breach of peace, he gets jurisdiction and any interlocutory order passed by him subsequently cannot be interfered with in revision.
17. We would, sum up our conclusions thus:
(i) The proceeding under Section 107, Cri. P. C. which was initiated prior to the commencement of the new Code would be enquired into under Section 484(2)(a) as it was pending on 1-4-1974 when the new Code came into force.
(ii) A revision filed against the impugned order would be under the new Code as the right to file a revision is not a vested right. The revisional jurisdiction would be exercised with reference to Sections 397 and 401 of the new Code.
(iii) Sections 397, 398 and 401 of the new Code are interlinked and are to be read together.
(iv) If the decision on an issue puts an end to a suit or proceeding, the order is a final order. But if the suit or criminal proceeding is still alive and has got to be tried in the ordinary way, no finality is to be attached to the order. It will be an interlocutory order.
(v) Section 482 of the new Code cannot be invoked to quash an interlocutory order in view of the specific provision in Section 397(2) banning revision of interlocutory orders.
(vi) Though the impugned order dated 4.7.1974 has the form and shape of an interlocutory order it is illegal and without jurisdiction. It is a nullity and is non est in the eye of law.
(vii) Interlocutory orders passed without jurisdiction which constitute nullities can be interfered with in revision under Section 401 and in appropriate cases under Section 482. Interlocutory orders passed within jurisdiction cannot be interfered with either under Section 401 or under Section 482.
[Ref-Bhima Naik And Ors. vs State on 16 May, 1975]
My view in relation to above Interpretations.
After analyzing these observations by Supereme Court and Different High courts, one can easily establish the difference between 'Interlocutory Order' and 'Final Order'.
Here In observation 4, point number 17,clause number (iv) is of much importance as we are discussing here about the evidence(in this case calling the doctor to give statements about the report) Here by not ordering to summon the doctor is not a final judgement and secondly it's a criminal case. Therefore,provision made in subsection(2) of section 397 applies in the querist's situtation.
The above discussion should be read with each of my replies in this thread.
I think,one should not have doubt about it now that the order passed by the Magistrate is not a final order but rather a 'Interlocutory Order'.
Now I leave everything on the fate of the querist and wisdom.(Appeal or Revision!!!).
Hope I don't have to make another breach of my statement of 'Last reply to this thread'.
Note-This reply should be taken as per the declaration given in my profile page.
Thanks,
Regards,
